DPP v Almasi

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 26 June 2020
• Neutral Citation: [2020] IESC 35
• Date: 26 June 2020
• Docket Number: [S.C. No. 196 of 2019],Supreme Court appeal number: S:AP:IE:2019:000196 Court of Appeal record number 2016/100 [2018] IECA 372 Central Criminal Court bill number: CCCDP00S1/2014
• Court: Supreme Court

BETWEEN

THE PEOPLE (DPP)

PROSECUTOR/RESPONDENT

- AND -

ZOLTAN ALMASI

ACCUSED/APPELLANT

[2020] IESC 35

O'Donnell J.

Dunne J.

Charleton J.

O'Malley J.

Baker J.

Supreme Court appeal number: S:AP:IE:2019:000196

[2020] IESC 000

Court of Appeal record number 2016/100

[2018] IECA 372

Central Criminal Court bill number: CCCDP00S1/2014

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Conviction – Murder – Provocation – Appellant seeking to appeal against conviction –Trial judge’s ruling that the partial defence of provocation should not be put before the jury

Facts: The accused/appellant, Mr Almasi, was convicted on 10 March 2016 of murder and sentenced in accordance with law to life imprisonment. That conviction was appealed to the Court of Appeal on five grounds and by judgment delivered on 16 July 2018 the order of the Central Criminal Court was upheld. By determination of the Supreme Court of 18 February 2020, leave was granted to argue the following points based on the refusal of the Court of Appeal of 26 July 2018 to grant the accused leave to appeal: (1) whether the Court of Appeal was correct in upholding the trial judge’s ruling that the partial defence of provocation should not be put before the jury; (2) whether the Court of Appeal was correct in upholding the decision of the trial judge to permit the prosecution to edit memoranda of interview with the applicant in such a way as to omit statements made, and the terms of the questions asked, by the investigating Gardaí; and (3) whether the Court of Appeal was correct in upholding the ruling of the trial judge that evidence of the deceased’s demeanour and conduct prior to the event leading to his death was inadmissible.

Held by the Court, having reviewed the relevant statutory provisions and jurisprudence, that there was a provocative event in the instant case; namely the attack on the van by the deceased. The defence put forward had some air of reality, and as such the trial/assessment of the defence of provocation was a matter for the jury.

The Court held that, in consequence of the errors by the trial judge, the correct result was to overturn the conviction and order a retrial.

Appeal allowed.

Judgment of Mr Justice Peter Charleton delivered on Friday 26 June 2020

1 As in the appeal of The People (DPP) v McNamara [2020] IESC, at issue on this appeal has been the role of the trial judge in declining to leave an asserted defence of provocation to the consideration of the jury and the proper analysis of the elements of that partial defence to a charge of murder. But, in this case, since much of the evidence before the jury was derived from statements edited against the express wish of the accused, the proper approach to editing interview material must be considered. Finally, the relevance, and therefore the admissibility, of the actions and the demeanour of the deceased prior to the fatal attack on him by the accused requires analysis.

2 By determination of this Court of 18 February 2020, leave was granted to argue the following points based on the refusal of the Court of Appeal of 26 July 2018 to grant the accused leave to appeal; [2018] IECA 372:

1. Whether the Court of Appeal was correct in upholding the trial Judge's ruling that the partial defence of provocation should not be put before the Jury.

2. Whether the Court of Appeal was correct in upholding the decision of the trial judge to permit the Prosecution to edit memoranda of interview with the applicant in such a way as to omit statements made, and the terms of the questions asked, by the investigating Gardaí.

3. Whether the Court of Appeal was correct in upholding the ruling of the trial judge that evidence of the deceased's demeanour and conduct prior to the event leading to his death was inadmissible.

Background

3 Such facts as are now set out can be indicative only, since finding facts in a criminal trial is a matter for the jury and what follows is merely derived from the transcript. Zoltan Almasi, the accused, lived at an address at Harbour View in Naas, county Kildare. On the evening of 16 May 2014, he heard a commotion on the roadway outside his home. This noise was made by the deceased Joseph Dunne banging on his van. The deceased was a young man of 20 years of age. According to the accused, his van had been damaged by interference on a prior occasion, but not by the deceased. The accused, having arrived home from work, was about to have a shower. Hearing the noise and seeing some of what happened from a window, he quickly dressed and went out, taking a baseball bat which was near his front door with him. An argument ensued. The details are unclear since CCTV shows part only of the altercation, because the accused and the deceased are out of view when the fatal blow is struck. What is clear on the verdict of the jury is that the accused hit the deceased on the head with the baseball bat and killed him. The accused was convicted on 10 March 2016, of murder and sentenced in accordance with law by the trial judge to life imprisonment. That conviction was appealed to the Court of Appeal on five grounds and by judgment delivered on 16 July 2018 the order of the Central Criminal Court was upheld.

4 On the day of the homicide, the deceased had been drinking near to the canal in Naas. This is quite close to the home of the accused. Late in the evening, accompanied by four others, the deceased made his way along the canal and towards Nass town. The deceased was drunk and in poor humour, confronting a passer-by for no reason. His companions persuaded him to desist. The group of five came to the accused's home where his van was parked outside. The victim hit the van, how many times is uncertain but what is clear is that enough noise was generated to attract the attention of the accused. The van was used by him either for work or to transport dogs to shows. He took a baseball bat from near the doorway of his house and pursued those he believed had been involved. On becoming aware of the accused, the group scattered. CCTV shows the deceased running while being chased by the accused who is carrying the baseball bat. The victim ran past a restaurant and some people emerged from there. One lady testified to seeing a young fellow in a blue and white tracksuit top, a girl in a white hoodie top and another girl and hearing a shout of “what are you doing with the baseball bat?” and a reply coming “you broke my car”. Another patron of the restaurant had gone onto the roadway for a cigarette and testified that he “could see some people on the opposite side of the road, opposite the patio where we were sitting, one either side of a vehicle … arguing.” Both were agitated and one was carrying a baseball bat. Among remarks he heard was one about not messing with a car. Someone urged that the weapon be dropped and that the deceased should “come over here.” The two men he could see arguing were “agitated” and “aggressive towards each other” and the man with the baseball bat was cross about his car. There was a reference made by the accused that this had “happened before” and he is remembered as having said “I've had enough”. This man intervened and said to both of them: “look, stop this, there's no need for this.” His attempt to calm the situation was ignored and the men continued shouting at each other. The fatal blow was struck where CCTV did not capture the incident. The witness went back into the restaurant but, on leaving a short time later, he described the following:

The guy with the baseball bat had gone to the left, down towards the canal, to the harbour. And we looked up towards the right and there was a guy lying just right at the corner of the adjacent building, lying on the ground. So we went over to him and he was alive when we went there, because I grabbed his hand and we called 999, because we could see he was bleeding.

5 There were two other people apart from the accused and the deceased who saw the fatal blow being struck. The forensic pathology evidence, of Dr Michael Curtis, was that the deceased's injuries were consistent with the interpretation that he had been struck once in a descending motion with the tip of the baseball bat, while he was standing and that this caused him to fall down. Such other injuries as might have been present on the deceased's body could be the subject of interpretation but were much less serious. The blow with the baseball bat caused a comminuted and depressed skull fracture with haemorrhage into the brain stem. This undermined heart and lung functioning and caused rapid death. Dr Curtis also stated that a toxicology report indicated that the deceased had a blood alcohol level of 231mg, a urine alcohol level of 362mg, all per 100ml, and that no drugs were detected. The forensic pathologist's view was that the main injury was infinitely more likely to have been caused by a blow with a baseball bat than a fall. A single blow of a smooth weapon like a baseball bat does not usually leave blood or DNA traces on it and none were found.

6 Garda officers at the scene spoke to the accused after caution. His initial statement was noted thus:

Coming home, I parked my car behind garage. I went into house for sugar. This was after work; I finished at 21:30 in TNT Dublin. I heard bang, bang, bang. Four guys, one girl were outside my house and they were damaging my car. I came out with baseball bat and they started running. I ran towards restaurant after one guy and two had been quick and ran. I ran past restaurant. I followed him. He fell to the floor and I turned for the others in the car.

7 On interview, the accused was shown CCTV footage, which does not show the actual killing. The accused claimed that he did not know the baseball bat had hit the deceased and claimed that what had happened to the accused was an accident. While denying being in a rage, he claimed that he had been following the group to talk...